“A remedy is needed that will restore health to the sick man in our constitutional system,” said Senator Ted Cruz, shortly after the Supreme Court’s rulings on Obamacare and marriage equality in June.

“With all due deference to separation of powers, last week the Supreme Court reversed a century of law that, I believe, will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections,” President Barack Obama warned after Citizens United in 2010.

“Many of our politicians have surrendered to the false god of judicial supremacy, which would allow black-robed and unelected judges the power to make law as well as enforce it,” declared former Arkansas Governor Mike Huckabee, following the legalization of gay marriage.

An increasing number of prominent politicians in both parties are bashing the Supreme Court on a regular basis. They switch so easily from condemning the judicial activism of these “black-robed and unelected judges” to praising the wisdom of said judges.

The numbers bear out this growing distaste for the Court. According to a C-Span/Penn Schoen Berland poll released on July 21, 66 percent of Americans believe the Supreme Court is as partisan as Congress and not fulfilling its proper constitutional duty. 76 percent believe that the Supreme Court should allow TV cameras in their chambers during oral arguments, in order to make the Court more transparent. 60 percent disagreed with the lifetime appointment of Justices to the Supreme Court; 79 percent were open to 18-year terms.

Another poll, released by Reuters/Ipsos on July 20, showed that 63.4 percent of Democrats, 63 percent of independents, and 72 percent of Republicans said they favored a 10-year term for the Justices. 54 percent of Democrats and 50 percent of Republicans looked favorably on a system that allowed justices to be elected.

These numbers are impressive. They cut across the political spectrum. Approval of the Court may ebb and flow with the political tides, but the idea of reform remains a consistent trend.

How Americans would reform the Court is another matter entirely. Proposals range from Sen. Cruz’s election retention proposal to limiting the time served as a Justice anywhere from eight to 18 years. Such divisions limit the likelihood of reform any time soon.

As the calls for reform mount, it is tempting to believe the Court is, as Sen. Cruz says, the “sick man” of the Constitution. After all, the Court is not directly accountable to voters, yet its decisions can affect policies for generations. The Court’s decisions are difficult to defy or change, yet the Court is not infallible. Its very nature seems to fly in the face of democratic principles.

But it is important to remember the nature of the Supreme Court. It is not a “popular” branch of government; it is an insulated branch, designed to serve the Constitution. The Court must be able to make unpopular decisions. It must be willing to do what is right without checking poll numbers.

As such, popularity should not be the Court’s aim. The Court has made many unpopular decisions in the past that have endured as positive legacies, like desegregation and the right to privacy. And many decisions that were popular in their day, like Plessy v. Ferguson, have become bitter blots on the Court’s honor.

The Supreme Court has a unique and important role to play in the separation of powers. That role should be remembered, even when we don’t like what it says.

]]>http://blog.constitutioncenter.org/2015/07/is-the-supreme-court-the-sick-man-of-the-constitution/feed/0It was 70 years ago today that the nuclear age beganhttp://blog.constitutioncenter.org/2015/07/it-was-70-years-ago-today-that-the-nuclear-age-began/
http://blog.constitutioncenter.org/2015/07/it-was-70-years-ago-today-that-the-nuclear-age-began/#respondThu, 16 Jul 2015 10:00:41 +0000http://blog.constitutioncenter.org/?p=39368On a July morning in New Mexico in July 1945, the modern world changed with the first successful test detonation of a nuclear weapon. The debate continues today about the use of the technology.

Color photo of Trinity test

On Tuesday, the United States, Iran and five other nations announced a deal to potentially limit Iran’s development of a nuclear weapon. Currently, nine countries are known to have nuclear weapons, according to the Federation of American Scientists. The Iran deal will be heavily debated in Congress over its effectiveness in keeping Iran from becoming the 10th member of the nuclear club. In addition, 31 nations use nuclear reactors as powers sources.

Back in July 1945, the United States was close to verifying an effective atomic bomb that it had started considering in 1939, after a letter from Albert Einstein and Leo Szilard notified President Franklin D. Roosevelt about the destructive potential of nuclear fission research and its potential use by Nazi Germany.

Alexander Sachs, a presidential confidant, met with President Roosevelt to review the letter and research. “Alex,” Roosevelt reportedly said, “what you are after is to see that the Nazis don’t blow us up.” By late 1941, the American nuclear program was given its code name, the Manhattan Project, and in late 1942, Enrico Fermi conducted the first successful nuclear chain reaction test in Chicago.

In all, the United States spent an estimated $2 billion on a project that employed more than 120,000 people to build a nuclear weapon. The critical field test of a nuclear device was scheduled for July 16, 1945, to coincide with the arrival of President Harry Truman at the Potsdam Conference.

The test bomb was placed on a 100-foot tower near Alamogordo, New Mexico. Government officials and scientists weren’t sure what to expect when the device called Gadget was detonated at 5:30 a.m. The explosion was about four times stronger than anticipated by some scientists at Los Alamos; Robert Oppenheimer later remarked the blast reminded him of a passage from Hindu text, the Bhagavad-Gita: “Now I am become Death, the destroyer of worlds.”

Within a month, the United States military had dropped two atomic bombs on Japan, facilitating the end of World War II and the start of the Cold War. Truman had told Soviet leader Joseph Stalin about a new weapon of mass destruction while at Potsdam; the Soviets already knew secretly about the American program and were working on their own atomic research.

The nuclear race between the Americans and Soviets became an immense cause for international concern, and by the mid-1950s, the United Nations sought to work with two nations, and other potential nuclear powers, to reign in nuclear testing.

In August 1963, after eight years of talks during the height of the Cold War, President John F. Kennedy and Soviet leader Nikita Khrushchev agreed to the Limited Nuclear Test Ban Treaty. On September 23, 1963 the agreement was approved by the U.S. Senate, by an 80-19 margin. President Kennedy then ratified the treaty on October 7, 1963.

The Limited Nuclear Test Ban Treaty banned nuclear weapons testing under water, in the atmosphere, or in outer space, but it permitted underground tests if radioactive debris fell within the boundaries of a country conducting the test. (Eventually 125 nations signed on to the treaty.)

A second treaty with broader test limitations, the Comprehensive Nuclear Test Ban Treaty, was approved by the United Nations in September 1996. President Bill Clinton sent the treaty to the U.S. Senate, where it was rejected by a 51 to 48 margin in 1999, well-short of the two-thirds vote demanded by the Constitution.

“The newly introduced USA Freedom Act includes reforms to the Foreign Intelligence Surveillance Court, the secret court that approves National Security Agency surveillance requests….Five special advocates will be appointed by the court and will be called upon whenever the court is considering a novel or significant construction of law. The amicus is meant to advocate for the protection of civil liberties and privacy, educate the court on intelligence collection or communications technologies, and answer any questions the court may have…The one-sided court will no longer only hear from the government.”

– Excerpt from an analysis by the Electronic Frontier Foundation, a digital age privacy advocacy group, of the legislation now moving through Congress on changes to the existing system of a secret court’s role in authorizing the government’s massive intelligence-gathering network through electronic eavesdropping and data sweeps.

“The presiding judges [of the Foreign Intelligence Surveillance Court and its companion appeals court] shall, not later than 180 days after the enactment of [this bill], jointly designate not fewer than five individuals to be eligible to serve as amicus curiae, who shall serve pursuant to rules the presiding judges may establish….Such amicus curiae is to assist such court in the consideration of any application for a [surveillance] order or review that, in the opinion of the court, presents a novel or significant interpretation of the law…Individuals designated as amicus curiae shall be persons who possess expertise in privacy and civil liberties, intelligence collection, communications technology, or any other area that may lend legal or technical expertise to the court.”

– Excerpt from the bill, H.R. 2048, called the USA Freedom Act, recently approved by the House Judiciary Committee with bipartisan support. The measure is considered to have a good chance of passage by Congress.

WE CHECKED THE CONSTITUTION, AND…

One of the longest-running traditions in American law, deeply embedded in several parts of the Constitution and with ancient roots in English legal history, is the idea that law works best in an “adversary system.” That means that two sides, each with competent lawyers, will work diligently and within proper legal bounds to promote their side of a legal controversy and, at the end of this open and healthy combat, will result in just outcomes.

There is a bit of idealistic aspiration about the virtues of this system, but it has, on the whole, worked well for generations and even centuries.

With an impartial judge or jury making the final call in such a contest, even the loser, supposedly, can rest assured that its side had a fair chance, its “day in court.” Thus, the outcomes are likely to be widely accepted and perhaps even broadly respected. The Constitution seeks to assure such results through the right to a jury and to a lawyer, the right to a public trial, and the requirement that – in the national courts – no case may proceed at all unless it involves an actual “case or controversy,” meaning adversaries pursuing conflicting interests.

For the past 37 years, there has existed one federal court that has not been required to use the adversary system, and that has long been a source of criticism. It is the Foreign Intelligence Surveillance Court, which meets in absolute secrecy, until very recently never published any of its decisions or orders, and – most importantly – made its rulings after listening to only one side: the federal government, seeking permission to conduct widespread electronic surveillance in search of intelligence about threats to U.S. national security.

The record of that court is, simply, that it very seldom has said no to such a request by the government. And, as the revelations of former spying agency analyst Edward Snowden have shown, that court was a full partner in a steadily expanding, global campaign of secret electronic communications-monitoring, not only involving those who might pose threats to security, but also ordinary Americans. A penetrating invasion of individual privacy has been the predictable result.

With the Snowden revelations creating a new public sensitivity about this invasion, there has been rising interest in changing the operation – and the culture – of the secret court, to make it more public and more accountable. One of the innovations most often mentioned was to turn that court into a court operating on the adversary system.

Instead of considering only what the federal government wants, in surveillance approval, the court would also hear from an independent source – sometimes called a “public counsel,” and, in the most recent version, an “amicus curiae” (the Latin phrase for friend-of-the-court). New legislation starting to work its way through Congress uses the amicus curiae approach.

The Supreme Court and lower federal courts have often heard from amicus curaie, in addition to the two sides in a normal adversary contest, to provide additional perspective and legal learning in the proceedings. Most of the time, these “amici” do not actually take part in court hearings, but file written briefs to help educate the court in ways that may go beyond what the two opposing sides have offered.

As the current bill in Congress would approach something like an adversary system in the Foreign Intelligence Surveillance Court, the amicus would not be, in all respects, a truly independent adversary. The measure as now written leaves it up to the judges to decide when to call in such an adviser, and thus there would not routinely be an adversary available to oppose government requests for surveillance orders. The chief judges of the secret court would also specific just how the amicus would function, and would have the option of declining to use an amicus curiae at all.

It may be that this could approach something like a true adversary proceeding before the secret court, but it could not fully assure that the contest would be an equal one in the traditional way.

Even with some limitations, however, this would be a significant departure from the history of the secret court’s operations since it was created in 1978, and may well have potential for assuring somewhat greater privacy protection for Americans who otherwise might get caught routinely in an electronic dragnet. And it could create the public impression that the operation of such a dragnet would not be left entirely to government choice.

]]>http://blog.constitutioncenter.org/2015/05/constitution-check-a-privacy-advocate-at-the-secret-spying-court/feed/0Constitution Check: Did the Founders want term limits for Supreme Court Justices?http://blog.constitutioncenter.org/2015/03/constitution-check-did-the-founders-want-term-limits-for-supreme-court-justices/
http://blog.constitutioncenter.org/2015/03/constitution-check-did-the-founders-want-term-limits-for-supreme-court-justices/#respondTue, 31 Mar 2015 10:39:02 +0000http://blog.constitutioncenter.org/?p=38032Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at comments from Mike Huckabee about the Founders’ intentions for a Supreme Court with term limits and what Alexander Hamilton said about the issue.

THE STATEMENT AT ISSUE:

“Prospective presidential nominee Mike Huckabee called Saturday for the imposition of term limits on U.S. Supreme Court justices, saying that the nation’s founders never intended to create lifetime, irrevocable posts. ‘Nobody should be in an unelected position for life,’ the former Arkansas governor said in an interview, expanding on remarks he made during an hour-long speech at the Nixon Presidential Library in Yorba Linda. ‘If the president who appoints them can only serve eight years, the person they appoint should never serve 40. That has never made sense to me; it defies that sense of public service.’ Huckabee said the Federalist Papers, written by Alexander Hamilton, James Madison and John Jay, supported his view that the nation’s founders came close to imposing judicial term limits in the Constitution; they never could have imagined people would want to serve in government for decades, he said.”

– Story in The Los Angeles Times, on March 28, describing an interview with the ex-governor, who is expected to announce soon that he will again seek the presidency.

WE CHECKED THE CONSTITUTION, AND…

Much of the American Constitution endures, after more than two centuries, in its original form, and that is a testament to the wisdom of the founding generation that put it together. But it is sometimes true that a commentator here and there will treat the original Constitution as if it said something different from what it actually says, something more agreeable to that person.

Politicians on the stump may indulge themselves in that kind of revisionism because it better suits an aspiration they may have for America. One perhaps can expect, as America moves more deeply into the next round of presidential politics, that the Constitution will take on new meanings on the stump. Given that it is so easy to disprove such rewriting, it is surprising that even politicians eager for votes would allow themselves to be shown to be wrong. That, however, seems not to be much of a deterrent.

One constitutional fantasy is that the Supreme Court should not really have members who can serve for their lifetimes, a choice left entirely to them personally so long as they behave themselves and do not give reasons to seek to unseat them involuntarily.

The opening words of the Constitution’s Article III, describing the judiciary that the original document created at the national level, reads this way (with emphasis added): “The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior…”

The phrase “good behavior” obviously implies that there is no limit on how long a Justice may serve, once approved for serving on the court. That implication is supported by the impeachment provision of the Constitution, contained in Article II. Just as the president and vice president may be removed from office by impeachment, so, too, can federal judges, including Justices of the Supreme Court. But that can only happen if they are convicted of “treason, bribery, or other high crimes and misdemeanors.” Those, surely, are words that describe the opposite of “good behavior” for a judge, so they give meaning to the question of Justices’ right to continue in office indefinitely.

If former Arkansas Governor Mike Huckabee has been quoted accurately by the Los Angeles Times, he has a perception of what the founding generation wanted regarding judicial tenure that seems to run counter to Article III and to the history of the founding years. There is nothing in Article III, or in the impeachment provision, that supports the notion that “the nation’s founders never intended to create lifetime, irrevocable posts” for Supreme Court Justices, or for other federal judges.

That part of Article III has never been revised, and the prospects that it will be – say, for example, by an amendment to impose term limits – seem quite remote if not non-existent.

But Huckabee’s quarrel is not only with constitutional language, but with what that very influential document of the founding era – the Federalist Papers – has to say on the subject of the terms of service on the Supreme Court.

The most authoritative and thorough Federalist Paper on “the judicial department” is No. 78, published on May 28, 1788. Like all other papers, it was published under the pen name “Publius,” but this one was actually written by Alexander Hamilton. To suggest, as Gov. Huckabee does, that Hamilton and the other authors of the Federalist “came close to imposing judicial term limits” does not take account of Paper No. 78.

Here is some of what Hamilton wrote there, describing the sense of the Philadelphia Convention that drafted the original Constitution:

“According to the plan of the convention, all judges who may be appointed by the United Sttews are to hold their offices during good behavior; which is conformable to the most approved of the state constittions….Its propriety having been drawn into question by the adversaries of that plan is no light symptom of the rage for objection which disorders their imaginations and judgments. The standard of good behavior for the continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of government….It is the best expedient which can be devised in any government to secure a steady, upright and impartial administrations of the laws….This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”

There is in those sentiments not the slightest hint that Hamilton, or Madison or Jay, “came close to imposing judicial term limits in the Constitution” or that “they never could have imagined people would want to serve in government for decades.”

The Huckabee musings on this subject run into another logical barrier in the structure of the Constitution.. He was quoted as saying that, if presidents who appoint members of the court can only serve eight years, the person they name should not serve 40 years. But, until the Twenty-Second Amendment was written into the Constitution in 1951, there were no term limits for those who served as president. So, for 163 years after Article III was put into the Constitution, there was no potential inconsistency between the tenure of presidents and of Supreme Court Justices.

Franklin Roosevelt, the last president not affected by the Twenty-Second Amendment, served for three full terms, plus 83 days into a fourth term. One of the eight Justices he named to the Court set the record for the longest service on the court: William O. Douglas, who served more than 36 years. While the nation turned out to be uncomfortable with a presidential term of the length of Franklin Roosevelt’s, there has been no serious effort to curb the service of the Justices. And that seems to reflect the founders’ true wishes.

]]>http://blog.constitutioncenter.org/2015/03/constitution-check-did-the-founders-want-term-limits-for-supreme-court-justices/feed/0Should President Obama, or any President, be allowed to serve a third term?http://blog.constitutioncenter.org/2015/02/should-president-obama-or-any-president-be-allowed-to-serve-a-third-term/
http://blog.constitutioncenter.org/2015/02/should-president-obama-or-any-president-be-allowed-to-serve-a-third-term/#respondFri, 27 Feb 2015 11:59:17 +0000http://blog.constitutioncenter.org/?p=37599With the anniversary of the 22nd Amendment on Friday, Constitution Daily looks at two hot-button topics: Should a President be allowed to serve a third term? And should members of Congress and the Supreme Court have term limits like the President?

The 22nd Amendment brought the idea of term limits into the Constitution. When it was ratified in 1951, the amendment limited a President from effectively serving a third term, by saying that a President who won two elections can’t run a third time.

The 22nd Amendment also bars a President from serving more than 10 years in office, in a case of a President who assumed office as Vice President.

For example, Vice President Gerald Ford took over for President Richard Nixon in 1974 and served more than two years as president. If Ford had defeated Jimmy Carter in the 1976 presidential election, Ford could not have run for re-election.

Long before the 22nd Amendment, George Washington had set an unofficial precedent in 1796 when he decided several months before the election not to seek a third term. But Alexander Hamilton and many Founders wanted a strong executive, and they opposed term limits as a concept. Thomas Jefferson and an equally influential group of Founders supported term limits for the President.

The only person to break from Washington’s precedent was President Franklin D. Roosevelt, with a record-setting four election wins. Before Roosevelt ran for re-election in 1940, most Presidents didn’t try for a third term in office, let alone a third consecutive term.

Roosevelt’s distant cousin, Theodore, came the closest to breaking the precedent in 1912, when he ran for President a second time. Theodore Roosevelt succeeded President William McKinley in 1901 and had served about 7 ½ years in the White House. Theodore Roosevelt passed on running for a third consecutive term in 1908, fully aware of the Washington precedent. But after a fallout with President William Howard Taft, Roosevelt sought a third nonconsecutive term in the 1912 presidential election. He lost the election but came in second ahead of Taft. (Woodrow Wilson and Harry Truman briefly considered seeking a third term but passed.)

After Franklin Roosevelt died in 1945, momentum built for a presidential term-limits amendment. Congress passed it in 1947, and it was ratified by the states in 1951.

In fact, Serrano has offered the same bill since 1997–during the presidencies of Bill Clinton, George W. Bush and Barack Obama. The bills were tabled each time.

Representative Steny Hoyer offered similar bills in the past and current Senate Majority Leader Mitch McConnell sponsored a similar bill in 1995—during the Clinton administration. Barney Frank and Jerry Nadler also presented anti-22nd Amendment bills in the past.

There was no interest among legislators in pursuing a 22nd Amendment repeal, probably because most people are happy with term limits for the President. The odds of getting 38 states to ratify an amendment would be very, very steep.

However, the issue of term limits for Congress is a different matter. In a Gallup poll in January 2013, about 75 percent of Americans polled favored limiting terms for Congress members.

In an elegant act of “judicial jujitsu,” the Supreme Court issued its decision in Marbury v. Madison on February 24, 1803, establishing the high court’s power of judicial review.

The dramatic tale begins with the presidential election of 1800, in which President John Adams, a Federalist, lost reelection to Thomas Jefferson, a Democratic-Republican. Congress also changed hands, with the Democratic-Republicans achieving majorities in both chambers.

Adams could see the writing on the wall: his party had been relegated to the judicial branch. In a bid to strengthen Federalist power, he appointed Secretary of State John Marshall to be Chief Justice of the Supreme Court. Adams also worked with the outgoing Congress to create a slew of new judicial offices, which he promptly filled with Federalist jurists.

On March 1, 1801, three days before Jefferson’s inauguration, Adams stayed up late into the night signing commissions for the new judges. The “midnight appointments,” as they came to be known, were also notarized by Marshall, still performing his secretarial duties.

But the rush of presidential transition led to the administration’s failure to deliver several of those commissions, including that owed to William Marbury, who had been named a justice of the peace for the District of Columbia.

On March 4, having assumed the presidency, Jefferson ordered Secretary of State James Madison not to deliver the commissions. Outraged, Marbury sued, demanding that the Supreme Court force Madison to comply.

In Marbury v. Madison, the Court was asked to answer three questions. Did Marbury have a right to his commission? If he had such a right, and the right was violated, did the law provide a remedy? And if the law provided a remedy, was the proper remedy a direct order from the Supreme Court?

Writing for the Court, Marshall answered the first two questions resoundingly in the affirmative. Marbury’s commission had been signed by the President and sealed by the Secretary of State, he noted, establishing an appointment that could not be revoked by a new executive. Failure to deliver the commission thus violated Marbury’s legal right to the office.

Marshall also ruled that Marbury was indeed entitled to a legal remedy for his injury. Citing the great William Blackstone’s Commentaries, the Chief Justice declared “a general and indisputable rule” that, where a legal right is established, a legal remedy exists for a violation of that right.

On the one hand, Marshall was strongly disliked by Jefferson, Madison, and the newly empowered Democratic-Republican Party. If he ordered delivery of the commissions, he risked simply being ignored by his rivals, thereby weakening the young Court. But on the other hand, siding with Madison could be seen as caving to political pressure—an equally damaging outcome.

The ultimate resolution was a deft balancing of these interests: Marshall ruled that the Supreme Court could not order delivery of the commissions because the law establishing such a power was unconstitutional.

That law, the Judiciary Act of 1789, said the Court had “original jurisdiction” in a case like Marbury—in other words, Marbury was able to bring his lawsuit directly to the Supreme Court instead of first going through lower courts.

Citing Article III, Section 2 of the Constitution, Marshall pointed out that the Supreme Court was given original jurisdiction only in cases “affecting Ambassadors, other public Ministers and Consuls” or in cases “in which a State shall be Party.” Had the Founders intended to empower Congress to assign original jurisdiction, Marshall reasoned, they would not have enumerated those types of cases. Congress, then, was exerting power it did not have.

For his concluding masterstroke, Marshall turned to Article VI, noting that the Constitution is “the supreme Law of the Land” and that all “judicial Officers” of the United States are bound by it. Thus, a law found to be in disagreement with the Constitution—for example, the Judiciary Act—cannot stand.

To be sure, Marshall did not invent judicial review—several state courts had already exercised judicial review, and delegates to the Constitutional Convention and ratifying debates spoke explicitly about such power being given to the federal courts.

Still, the legendary Chief Justice applied it firmly and artfully to the nation’s highest court. “It is emphatically the duty of the Judicial Department,” he wrote, “to say what the law is.”

In the short run, Jefferson and the Democratic-Republicans got what they wanted: Marbury and the other “midnight appointments” were denied commissions.

But in the long run, Marshall got what he wanted: a Supreme Court with teeth.

]]>http://blog.constitutioncenter.org/2015/02/marbury-v-madison-the-supreme-court-claims-its-power/feed/0Federal judge orders Alabama official to issue same-sex marriage licenseshttp://blog.constitutioncenter.org/2015/02/federal-judge-orders-alabama-official-to-issue-same-sex-marriage-licenses/
http://blog.constitutioncenter.org/2015/02/federal-judge-orders-alabama-official-to-issue-same-sex-marriage-licenses/#respondThu, 12 Feb 2015 22:36:28 +0000http://blog.constitutioncenter.org/?p=37372The gay-marriage debate in Alabama has taken another turn, after a federal judge overruled the state’s chief justice in a dispute over issuing marriage licenses to same-sex couples.

Shortly before close of business on Thursday, U.S. District Judge Callie V. S. Grande ruled that a local Alabama official must issue marriage licenses to same-sex couples—a direct response to recent actions by the state’s outspoken chief justice.

In late January, Granade issued an order finding the Alabama same-sex marriage ban amendment unconstitutional and enjoining the Alabama attorney general from enforcing it, with a 14-day stay for the chance to appeal.

But after the U.S. Supreme Court denied the attorney general’s appeal to put the marriages on hold, Alabama Chief Justice Roy Moore gave an order to probate judges not to issue same-sex marriage licenses.

Today’s ruling applies only to Don Davis, the local probate judge named in the case, but it nevertheless sends a message to judges statewide that they should defer to federal courts.

That may be hard to swallow for Moore, who has defended his view that the state’s same-sex marriage ban is still valid in an interview with CNN’s Chris Cuomo on Thursday morning.

With no definition of marriage in the federal constitution, Moore argued that the 2006 Sanctity of Marriage amendment in the Alabama constitution could not be struck down by federal judges.

Moore explained to Cuomo that “the opinion of a federal judge cannot mandate to state courts how they should judge under the law.” He said that he would continue to uphold the ban, regardless of how federal courts rule.

Moore also argued that the U.S. Supreme Court’s definition of marriage is and always has been of a man and a woman. In the landmark case Loving v. Virginia, for example, the Court ruled that a Virginia ban on interracial marriage was in violation of the constitution’s Due Process and Equal Protection clauses.

While some same-sex marriage advocates have pointed to this case to demonstrate the Court’s power to hold a state law limiting the fundamental right of marriage unconstitutional, Moore pointed out that Loving declared marriage “the right of free men and women to enter in the pursuit of happiness.”

It should be noted that the majority opinion in Loving does not say “free men and women” but instead says “free men.” Still, Moore uses this argument to claim that these unalienable rights cannot be taken away or mandated by the state.

At one point, the chief justice even turned to an obscure 1885 ruling in Murphy v. Ramsey, in which the Court referred to “the union for life of one man and one woman in the holy estate of matrimony” as “the sure foundation of all that is stable and noble in our civilization.”

Cuomo countered that these rights can, in fact, be taken away, using the example of slavery to show that the Court could alter an existing property right. Moore answered by citing the dissenting opinion of Justice Curtis from Dred Scott v. Sanford, which stated that the political opinions of the Court should not guide the Justices in their decisions.

For his part, Moore insisted that his own political opinions were not guiding his actions. When Cuomo raised the issue, Moore adamantly refuted the claim, saying, “This is not about my feelings; it’s about the law.”

Of course, Moore is no stranger to ideological battles. In 2003, he was removed from the Alabama Supreme Court by an ethics committee after his fight to keep a monument to the Ten Commandments in the Alabama Judicial Building. A decade later, he reclaimed the seat.

Jury selection in the federal trial of Dzhokar Tsarnaev, accused of plotting and carrying out an attack on the Boston Marathon in April 2013, began on January 5. U.S. District Judge George O’Toole, charged with overseeing the process, said that opening statements could begin as soon as January 26. That day came and went.

Considering the gravity of the charges brought against Tsarnaev—30 in all, 17 of which include the possibility of the death penalty—perhaps it’s no wonder that questioning for a jury pool of 1,373 has proceeded at a slower pace than expected. For many people, it’s not easy to send another human being to his death.

But the delay also has something to do with the jury pool itself.

A few selections from the official juror questionnaires: “I am set in my ways and this kid is GUILTY.” “Caught red-handed, should not waste the $ on the trial.” “We all know he’s guilty so quit wasting everybody’s time with a jury and string him up.”

Indeed, Tsarnaev’s defense team filed its third request for a change in venue on January 22. They’re concerned about the 68 percent of potential jurors who think the Russian youth is guilty and the 85 percent who either think he’s guilty or feel a personal connection to the Marathon bombing. As wisdom has it, maybe the third time’s the charm?

Of course, it might not matter. Prosecutors point out that 60 percent of the same jury pool said they could set aside their personal opinions. Plus, where in America would Tsarnaev not face prejudice? After all, millions watched the aftermath of the attack on national television, including a police shootout in nearby Watertown that resulted in the death of Dzhokar’s older brother and co-conspirator, Tamerlan.

There’s no silver bullet to guarantee justice in these difficult circumstances. Still, there’s a trusted civic handbook: the Constitution.

As Yale law professor Akhil Amar explains in The Bill of Rights, juries are enshrined in three different amendments: the Fifth Amendment (grand jury), the Sixth Amendment (criminal jury) and the Seventh Amendment (civil jury). Article III provides specifically for trial by jury in federal criminal cases—precisely what is unfolding now in Boston.

To the Founding generation, juries mattered. The only right common to all state constitutions written between 1776 and 1787 was the right to trial by jury in criminal cases. The Declaration of Independence condemns King George III and Parliament for “depriving us, in many cases, of the benefits of trial by jury.” Resolutions passed by the First Continental Congress made reference to the “inestimable privilege of trial by jury.”

Why? The colonists knew of the Star Chamber, the Bloody Assizes and Algernon Sidney. They knew what ambitious, unchecked judges might do to get ahead. They knew that corrupt government officials of all kinds threaten liberty.

Juries, then, were a targeted response to such threats. Jurors are “populist protectors,” to borrow a phrase from Amar; they are drawn from “We the People,” and have the right to refuse a conviction. Jurors are also members of the local community with the power to resist federal persecution. And jurors are participants in the political process, akin to members of a militia, who comprise “the democratic branch of the judicial power.

Alexis de Tocqueville, that great observer of American society, called juries “public schools” in which citizen-jurors learn the civic virtues necessary for the nation’s success. He also saw the jury as a bastion of democratic power:

The institution of the jury … places the real direction of society in the hands of the governed … and not in that of the government. … [It] invests the people, or that class of citizens, with the direction of society. … The jury system as it is understood in America appears to me to be as direct and extreme a consequence of the sovereignty of the people as universal suffrage. They are two instruments of equal power, which contribute to the supremacy of the majority.

It’s hard to walk away from Amar and Tocqueville without an appreciation for the centrality of juries to the American constitutional system. More relevant to the Boston Marathon bombing trial, it’s difficult to avoid a sense of the enormous responsibility entrusted to each juror. In jury selection, justice really is at stake.

In his first visit to the National Constitution Center, U.S. Supreme Court Justice Anthony Kennedy spoke to an audience of high school students on Monday about our nation’s founding documents.

The Justice peppered students from Constitution High School and Roman Catholic High School with questions about the Constitution. For example, he asked, how are Article I and Article II written differently? What are the powers of Congress versus the powers of the presidency?

“Don’t think you’re peeking!” he joked as the students consulted their pocket-size copies of the document. “I want you to peek! I want you to read the Constitution.”

Kennedy honed in on the significance of the nation’s first President, George Washington, who helped establish the American constitutional order in the face of strong disagreement among delegates at the Constitutional Convention and in light of Article II powers that are, at times, unclear.

“[The framers] weren’t quite sure what the President would do, but they assumed it would be Washington, and they trusted him,” he explained. “Trust is an essential component of a free society, an open society, a rational society.”

Kennedy also highlighted the importance of Isaac Newton, “the poster boy for the Enlightenment” who demonstrated that “the human mind, of its own force, can discover the laws of nature.”

“The Framers were showing that they could discover the laws of government,” he said. “They, like Newton in the scientific world, could write laws and principles that would govern our political life. That’s the link between the two.”

In his wide-ranging talk, Kennedy touched upon the fallout from Texas v. Johnson(1989), a famous case in which the Court ruled flag-burning to be constitutionally protected free speech.

The Justice told the story of a lawyer who confronted him at a diner in California. The man’s father had been a prisoner of war in Germany and was outraged by the Court’s ruling, telling his son that he ought to be ashamed to practice law.

Three days later, after thinking more about the decision, the man’s father came back. He said his son could be proud to be a lawyer.

“That’s the process of thinking about what the Constitution means in your own times, so that we can keep it,” Kennedy said. “In a couple more years, you’re going to be the trustees of the Constitution, not me. That’s why we want you to understand this heritage and its meaning.”

Kennedy also explored a chief purpose of the Bill of Rights—namely, to correct the erroneous construction of “freedom” enshrined in the original document.

“If you read Article I, Section 2, you’ll see a derivative of the word ‘freedom’ because the Constitution uses the word ‘free Persons,’” he explained. “It uses ‘freedom’ in this ironic sense of saying that some people have no freedom, or three-fifths of freedom.”

Justice Kennedy also took questions from the audience.

“I want you to do research and understand corrections and prison policies in this country,” he implored in response to a question from a sitting trial judge in Pennsylvania. “My state of California, for a time, had 200,000 people in prison at a cost of $30,000 a year. Compare $4,000 a year being given to elementary and secondary schools. It’s a little bit of apples and oranges … but if I have to take an economic calculus to get people to think about human cost, I’ll do it.”

“We’re fascinated with the guilt and innocence part of the project, and once it’s over, the sentencing, we throw away the key—we don’t care what happens in the prison system,” he added. “This is wrong.”

Later, Kennedy called out a recent cover of Foreign Affairs that depicts the U.S. Capitol “crumbling” because of “the state of our public discourse.”

“The verdict on freedom is still out,” he declared. “Half the world is the jury and they are out. They are looking to you to see if freedom works.

“This country owes a duty to the Constitution, to itself and to the idea of freedom to conduct a decent, rational, respectful, probing civic discourse—and we don’t have it.”

The Justice also took on the meaning of privacy, his vote in Hobby Lobby v. Burwell (2014), the ancient Greek idea of freedom, and how he feels about being “one of the highest judges in America.”

Ultimately, though, Justice Kennedy shared a message of empowerment.

“[The Framers] knew that just because you write something beautiful in the Constitution, it doesn’t mean you’re going to keep it,” he said. “There has to be good faith. There has to be rational discourse. There has to be a commitment.

“You don’t take a DNA test to see if you believe in freedom. It’s taught. … That’s why you learn about the Constitution. [It] defines who we are as a people.

“Don’t ever let your Constitution slip away. The Constitution has meaning for you in your own times.”

]]>http://blog.constitutioncenter.org/2014/09/justice-anthony-kennedy-talks-about-the-constitution-and-the-bill-of-rights/feed/0Podcast: How our federal judicial system was bornhttp://blog.constitutioncenter.org/2014/09/podcast-how-our-federal-judicial-system-was-born/
http://blog.constitutioncenter.org/2014/09/podcast-how-our-federal-judicial-system-was-born/#respondWed, 24 Sep 2014 10:33:52 +0000http://blog.constitutioncenter.org/?p=35181This week marks the 225th anniversary of the landmark act that established how the Supreme Court and other federal courts would act.

John Marshall

Article III, Section 1 of the Constitution says: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Article III goes on to enumerate the extent of the judicial power and define treason.

But the Framers of the Constitution mostly left it up to Congress to “ordain and establish” the rules and institutions that make up our third branch of government.”

The First Congress took up that challenge, drafting a solution under the leadership of Senator Oliver Ellsworth of Connecticut. That bill, the Judiciary Act, was signed into law by President George Washington on September 24, 1789.

To look at the fascinating history of the birth of our federal judicial system, we are joined on this special podcast by Jeffrey P. Minear.

Minear is Counselor to Chief Justice John Roberts and the Counselor helps the Chief with tasks related to his role as head of the judicial branch of government, as well as the non-case related duties that fall to the chief judicial officer of the Supreme Court.

The National Constitution Center’s Jeffrey Rosen interviewed Minear about how the Framers didn’t agree about judges and independent courts, the Marbury v. Madison decision, and how the Judiciary Act itself changed over time.